Citation Nr: 0508573
Decision Date: 03/22/05 Archive Date: 04/01/05
DOCKET NO. 97-13 246 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUE
Entitlement to service connection for asbestosis.
REPRESENTATION
Appellant represented by: Texas Veterans Commission
WITNESSES AT HEARING ON APPEAL
Appellant and his spouse
INTRODUCTION
The veteran served on active duty from November 1961 to May
1965. He also had a period of active duty for training
(ACDUTRA) from September 1960 to March 1961.
This appeal to the Board of Veterans' Appeals (Board)
previously arose from a March 1996 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Waco, Texas. The RO denied entitlement to service connection
for asbestosis.
In March 1997 the veteran and his wife provided oral
testimony before a Hearing Officer at the RO. A transcript
of their testimony has been associated with the claims file.
In August 2003 the Board most recently remanded this case to
the RO for further development and adjudicative action.
In May 2004 the RO affirmed the determination previously
entered.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify you if
further action is required on your part.
REMAND
This claim must be afforded expeditious treatment by the
Veterans Benefits Administration (VBA) AMC. The law requires
that all claims that are remanded by the Board or by the
United States Court of Appeals for Veterans Claims (CAVC) for
additional development or other appropriate action must be
handled in an expeditious manner. See The Veterans Benefits
Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat.
2651 (2003) (codified at 38 U.S.C. §§ 5109B, 7112).
The CAVC has held that section 5103(a), as amended by the
Veterans Claims Assistance Act of 2000 (VCAA) and § 3.159(b),
as recently amended, require VA to inform a claimant of which
evidence VA will provide and which evidence claimant is to
provide, and remanding where VA failed to do so. See
Quartuccio v. Principi, 16 Vet. App. 183 (2002); see also
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002);
38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2004).
The RO has not issued a VCAA notice letter to the veteran in
connection with his current appeal.
In this case, the record shows the RO provided the veteran
with general notice of the statutory and regulatory
provisions relevant to his claim in its statement of the case
furnished to him in October 1996; however, he has not been
provided specific notice of the VCAA and this law's
requirements, particularly VA's obligation to inform the
claimant which portion of the information and evidence, if
any, is to be provided by the claimant and which portion, if
any, VA will attempt to obtain on behalf of the claimant.
See 38 U.S.C.A. § 5103 (West 2002).
As such, absent notice of the VCAA, it would potentially be
prejudicial to the veteran if the Board were to proceed with
a decision at this time. See Bernard v. Brown, 4 Vet.
App. 384 (1993).
The CAVC has repeatedly vacated Board decisions where the
VCAA notice sent to the claimant failed to specify who was
responsible for obtaining relevant evidence or information as
to the claims that were subject to the appealed Board
decision. See e.g. Quartuccio v. Principi, 16 Vet. App. 183,
187 (2002); Charles v. Principi, 16 Vet. App. 370 (2002).
Aside from the obvious procedural defect - where no notice of
the VCAA has been provided to the claimant - it is abundantly
clear from the CAVC's judicial rulings on this subject that
providing a claimant with general VCAA notice or furnishing
VCAA notice with regard to unrelated claims will not satisfy
the duty-to-notify provisions of the VCAA, as interpreted by
the CAVC.
As the Board cannot rectify this deficiency on its own, see
Disabled American Veterans v. Secretary of Veterans Affairs,
327 F.3d 1339 (Fed. Cir. 2003), this matter must be remanded
for further development.
The Board observes that additional due process requirements
may be applicable as a result of the enactment of the VCAA
and its implementing regulations. See 38 U.S.C.A. §§ 5100,
5102, 5103, 5103A and 5107 (West 2002) and 66 Fed. Reg.
45,620 (Aug. 29, 2001) (38 C.F.R. §§ 3.102, 3.156(a), 3.159,
and 3.326(a)).
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
Accordingly, the case is remanded to the VBA AMC for further
action as follows:
1. The VBA AMC must review the claims
file and ensure that all VCAA notice
obligations have been satisfied in
accordance with 38 U.S.C.A. §§ 5102,
5103, and 5103A (West 2002), Veterans
Benefits Act of 2003, Pub. L. 108-183
,§ 701, 117 Stat. 2651, ___ (Dec. 16,
2003) (to be codified at 38 U.S.C.A.
§ 5103), and any other applicable legal
precedent, by issuing the veteran a VCAA
notice letter fully compliant with
Quartuccio, supra.
Such notice should specifically apprise
the appellant of the evidence and
information necessary to substantiate his
claim and inform him whether he or VA
bears the burden of producing or
obtaining that evidence or information,
and of the appropriate time limitation
within which to submit any evidence or
information.
Such notice should specifically advise
the veteran that he should submit all
pertinent evidence in his possession in
support of his claim of entitlement to
service connection for asbestosis.
38 U.S.C.A. § 5103(a) and (b) (West
2002); Quartuccio v. Principi, 16 Vet.
App. 183 (2002).
2. The VBA AMC should then conduct any
necessary development brought about by
the appellant's response and issue a
supplemental statement of the case, if
necessary.
Thereafter, the case should be returned to the Board for
further appellate review, if in order. By this remand, the
Board intimates no opinion as to any final outcome warranted.
No action is required of the veteran until he is notified by
the VBA AMC.
_________________________________________________
RONALD R. BOSCH
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board is appealable to the CAVC. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2004).